Police v Conway
[2006] SASC 186
•26 June 2006
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
POLICE v CONWAY; POLICE v PARKER
[2006] SASC 186
Judgment of The Full Court
(The Honourable Justice Bleby, The Honourable Justice Gray and The Honourable Justice Anderson)
26 June 2006
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, AND CANCELLATION AND SUSPENSION OF LICENCES - GROUNDS RELATING TO USE OF INTOXICATING LIQUOR OR DRUGS
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PERMISSIVE, DIRECTORY AND MANDATORY PROVISIONS
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES
Appeals against orders of magistrates pursuant to section 47IAB of the Road Traffic Act 1961 (SA) setting aside licence suspension notices issued to the appellants pursuant to section 47IAA of the Road Traffic Act - appeals brought on ground that in both cases, the magistrates erred in making an order pursuant to section 47IAB without evidence being given by or on behalf of the respondents.
Consideration of the legislative scheme for immediate licence disqualification or suspension - consideration of whether strict compliance with the legislative requirement that a notice of immediate licence disqualification or suspension issued pursuant to section 47IAA specify the offence said to have been committed is necessary and had been met - consideration of the meaning of the phrase "evidence by or on behalf of the applicant" in the context of the legislative scheme - discussion of the privilege against self-incrimination.
Held: Strict compliance with the requirement that the notice of suspension or disqualification specify the offence is necessary - the notices issued to the respondents in the prescribed form identified the incorrect offence - the notices issued to the respondents were invalid - "evidence" in the context of the legislative scheme ought to be construed broadly - the magistrates did not err by failing to require the respondents to give sworn evidence - appeals dismissed.
Road Traffic Act 1961 (SA) s 47IAA, s 47IAB, s 47E; Road Traffic (Miscellaneous) Regulations 1999 (SA) reg 6F, referred to.
Stanton v Police (1996) 66 SASR 263 ; Police v Jelinek (1998) 200 LSJS 441 ; Azzopardi v The Queen (2001) 205 CLR 50 ; Sorby v The Commonwealth (1983) 152 CLR 281; Kempley v The King [1944] ALR 249 ; Petty and Maiden v The Queen (1991) 173 CLR 95; Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 329; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Bond v WorkCover Corporation of South Australia and Allianz Australia Workers’ Compensation (SA) Ltd [2005] SASC 464; Doe v Davis (1847) 10 QB 314 ; Wendo v R (1963) 109 CLR 599 ; AG’s Reference No 2 of 1987 (1987) 46 SASR 275; Allesch v Maunz (2000) 203 CLR 172 ; Re Pochi (1979) 26 ALR 247; Reg v Deputy Industrial Injuries Commissioner: Ex parte Moore [1965] 1 QB 456, considered.
POLICE v CONWAY; POLICE v PARKER
[2006] SASC 186Full Court: Bleby, Gray and Anderson JJ
THE COURT:
Introduction
These appeals raise important questions of law arising from a new statutory scheme for dealing with drink driving introduced into the Road Traffic Act1961 (SA) in December 2005. The scheme permits a police officer by notice to impose an immediate licence disqualification or suspension before a complaint is made and without due process where the officer reasonably believes that an offence has been committed. This Court is asked to consider the true character of this statutory review process and to construe the phrase “evidence given by or on behalf of the applicant” within the context of section 47IAB of the Road Traffic Act.
These two appeals against decisions of magistrates were heard concurrently. Both were referred directly to the Full Court by single Judges of this Court.
The Crown contends that in respect of both appeals, the magistrate erred in making an order pursuant to section 47IAB without sworn evidence being given by, or on behalf of, the applicant. At the hearing of the appeal, no challenge was made to the validity of the legislation.
Police v Conway
On 8 December 2005, the respondent in the first appeal, Sharon Lee Conway, was reported by members of the South Australian Police following an alleged driving incident in the car park of a hotel. Ms Conway was required to submit to a breath test, which disclosed a blood alcohol concentration of 0.184 grams in 100 millilitres of blood.
On 8 December 2005, pursuant purportedly to section 47IAA of the Road Traffic Act, a member of the South Australian Police issued a notice of licence suspension to Ms Conway, suspending her driver’s licence for a period of 12 months, commencing 10 December 2005. The notice specified an offence against section 47B(2) of the Road Traffic Act. On 9 December 2005, pursuant to section 47IAB of the Road Traffic Act, Ms Conway filed an application for review of the licence suspension.
In that application Ms Conway sought an order pursuant to section 47IAB(2)(a) of the Road Traffic Act that she was not disqualified or suspended “as there is a reasonable prospect that I would be acquitted of the offence”. The grounds relied on were as follows:
Without any doubt I definately (sic) did not drive any motor vehicle on that night. My car was parked at home as police will witness. I can’t be drink driving when not in a car.
The matter came on for hearing before a magistrate sitting at the Christies Beach Magistrates Court that day. Ms Conway appeared unrepresented. A police prosecutor represented the Commissioner of Police.[1] The hearing was treated as a directions hearing. It would seem from the Certificate of Record that the magistrate noted that it would be necessary for the complaint (which had not then been issued) to be before the Court on the next occasion. The matter was adjourned to 16 December 2005 when it came before a different magistrate. By this time it appears that a complaint had been issued alleging a breach of section 45 of the Road Traffic Act[2] and a breach of section 47B of the Act.[3] At that hearing, the magistrate expressed some uncertainty regarding the process he was to follow, given the recent proclamation of the legislation. He informed Ms Conway of the dangers if she were to give evidence on oath. The prosecutor made the following submissions:
At 9.12pm on Thursday 8 December 2005, a witnesses [sic], seated in his vehicle in the car park of the Willunga Hotel, St Peters Terrace, Willunga, observed a Nissan van driven by a female person, South Australian registration UNL 092, reverse from its car park into a parked and unattended vehicle.
The driver of the Nissan van did not stop the vehicle, but left the scene immediately. The witness obtained the Nissan van’s registration number and alerted the owner of the damaged vehicle. Police were also notified.
At approximately 10pm, Police attended at the Willunga Hotel and spoke to the witness and inspected the damage to the vehicle. At approximately 10.10pm, Police located the driver of the Nissan van, the applicant Sharon Conway. The applicant was submitted to an alco test at 10.12pm which showed a positive result. She was then conveyed to the Aldinga Police Station were [sic] she was submitted to a breath analysis test at 10.42pm. The results of the breath analysis returned a reading of 0.184 grams of alcohol in 210 litres of breath.
The applicant, Ms Conway, made full admissions to being the owner of the Nissan van and being the driver at the time of the collision at about 9.12pm. She stated that she had “heard a thump noise” as she was reversing and thought that she had hit something. She stated that she did not stop, but rather drove her van to her (nearby) home address before returning to the Hotel on foot. She stated that she made no attempt to stop and exchange particulars, nor locate the owner of the vehicle she had struck. The applicant made further admissions that she had been drinking light beer at the hotel prior to the incident.
[1] Section 47IAB(4) of the Road Traffic Act provides that the Commissioner of Police “is a party to the application” and “may (but is not required to) appear at the hearing represented by legal counsel or a member of the police force.”
[2] Driving without due care.
[3] Driving with the prescribed concentration of alcohol in the blood.
According to the police prosecutor, Ms Conway then made submissions to the effect that she had driven her vehicle on the night in question, that she thought she had collided with something but thought it more likely to be a rail or fence post. Ms Conway submitted that she had been drinking at the hotel but had driven her vehicle home between 7-7.15pm, not 9pm as alleged by the prosecution. Ms Conway claimed to have two witnesses who would give evidence in relation to the time she drove her vehicle home.
The police prosecutor then submitted to the magistrate that Ms Conway’s two witnesses should be required to give evidence on oath in relation to her submission. The magistrate rejected this submission. He reasoned:
The prosecution case against Ms Conway, it is alleged, is that at 9pm on 8 December a witness sitting in his motor vehicle in the car park of the Willunga Hotel observed a van driven by a female person reverse into collision with a Ford motor vehicle in the car park. That person then advised the owner of the vehicle, who was an employee of the hotel, and subsequently the police were called. The police attended at 10pm and spoke to the defendant, who was at the hotel, at 10.10pm. A subsequent breath analysis test was conducted in accordance with the relevant legislation and regulations and a reading of 0.184 resulted at 10.39pm. The defendant did not deny that she was the driver of the van and was involved in the collision so it may be that there was no issue with respect to count one, the charge of driving without due care. However, she said that she had been drinking light beer, took her vehicle home and returned to the hotel. The defendant says that it was not at 9pm when she drove but that it was more like between 7 and 7.15pm and that people who were with her in the hotel, namely Lynne Murphy and Elizabeth White, can confirm that the time of driving was earlier than alleged by the prosecution witness.
There is a clear dispute therefore which arises on the material before me as to the time at which the defendant drove which itself could give rise to an argument concerning the admissibility of the subsequent breath analysis test. Is, therefore, there a reasonable prospect in those circumstances that the prosecution might fail to prove each and every element of the offence beyond reasonable doubt? I suppose there must be.
In those circumstances I intend to grant Ms Conway’s application and set aside the disqualification and/or suspension imposed by the relevant police officer.
The magistrate took the view that “evidence” as referred to in section 47IAB(2) should be widely interpreted as “materials of a relevant nature”. He concluded:
The legislation in, particular sub-section 2 of section 47IAB says that if the court is satisfied on the basis of evidence given by or on behalf of the applicant that there is a reasonable prospect that the applicant would in proceedings for the offence to which the Notice relates be acquitted of the offence and the evidence before the court does not suggest that the applicant may be guilty of another offence to which Section 47IAA applies, the court can make an order that the disqualification of the relevant member of the police force be set aside.
I take the view in an application such as this that ‘evidence’ should be widely interpreted as ‘materials’ of a relevant nature.
The Crown appealed against the decision of the magistrate on the ground that the magistrate erred in making an order pursuant to section 47IAB of the Road Traffic Act without evidence being given by, or on behalf of, Ms Conway.
Police v Parker
On 4 February 2006 at approximately 12.22am, the respondent in the second appeal, Stephen Sam Parker, submitted to a breath test for which a positive result was obtained. Police issued a notice of immediate licence suspension pursuant to section 47IAA of the Road Traffic Act, suspending Mr Parker from holding or obtaining a driver’s licence for a period of six months. That notice was issued in the prescribed form and, as with the notice issued to Ms Conway, it purported to allege that Mr Parker committed an offence pursuant to section 47B(2) of the Road Traffic Act.
According to an affidavit sworn by Mr Parker, the police then advised Mr Parker of his right to be provided with a blood test kit and to obtain a blood test. Mr Parker elected to exercise this right and obtained a kit from the police. Mr Parker subsequently attended at the Royal Adelaide Hospital, where a medical practitioner took a sample of his blood at approximately 3am. In accordance with the prescribed procedure, the medical practitioner placed the blood sample into two separate containers and provided one of the samples to Mr Parker. The medical practitioner also provided Mr Parker with a document entitled, “Schedule 3 Form of Certificate [Section 47G(1a)(reg.6)] Road Traffic Act, 1961 Blood Test for Alcohol (Medical Practitioner’s or Registered Nurse’s Certificate)”, verifying that the medical practitioner had collected the sample and indicating that one portion of the sample had been placed in the “blood box” for the police and the other had been personally given to the patient. The form also recorded that the identifying number of the blood sample was “B30684”.
A short time later, Mr Parker received a letter from an analyst employed at Forensic Science SA informing him that his blood sample was denatured and therefore unsuitable for analysis. That letter was in the following terms:
CERTIFICATE OF ALCOHOL ANALYSIS
Pursuant to Section 47 of the Road Traffic Act
I have examined a sample of blood, which was received at the Forensic Science Centre on 7 Feb 2006 for the presence of alcohol. Samples are identified by a number on the bottle, which in this case was B30684. This number also appears on the accompanying form.
The blood was denatured and unsuitable for analysis.
In his affidavit, Mr Parker stated that he contacted the Forensic Science Centre and spoke to an unknown male person regarding the portion of the blood sample that had been given to him and which he still had in his possession. Mr Parker inquired as to whether he was able to get his portion of the sample analysed. However, as the blood sample was no longer in a “fluid” form, he was informed that it was most probably unsuitable for analysis also.
On 23 February 2006, Mr Parker applied to the Adelaide Magistrates Court pursuant to section 47IAB of the Road Traffic Act to have the suspension reviewed. He supplied the following as grounds for the application for review:
The blood test came back denatured, therefore a blood result could not be determined. The breath analysis was taken shortly after I finished work and then I went straight to the hospital and did all I could to co-operate with police.
On that same day, a magistrate sitting at Adelaide heard the application. An affidavit sworn by the police prosecutor who attended at the hearing before the magistrate described the hearing:
At about 2.20pn on Thursday 23 February 2006, I appeared before Mr Grasso SM, a Magistrate sitting as a Magistrates Court at Adelaide in the State of South Australia, in relation to an Application to Review a Licence Disqualification.
The Respondent in this matter, Stephen Parker, appeared without counsel at that time and sat at the Bar table.
I located on the file a copy of the Certificate of Alcohol Analysis from Forensic Science SA that stated that the police portion of the blood taken from the [Mr Parker] pursuant to Section 47E of the Road Traffic Act was denatured and therefore could not be tested.
[Mr Parker] advised the court from the Bar table of the denaturation of the police sample. I did not contest that assertion, but neither [Mr Parker] nor I tendered the Certificate on the application.
His Honour then said to me that “it would appear you would have a problem”, or words to that effect.
At that time I argued the prosecution position, namely that the denaturing of the blood sample retained by police was not fatal to the Prosecution case. I cited the Full Court authority of Parker v Police [2002] SASC 256 with respect to this submission.
[Mr Parker] made a submission from the bar table that “I took my own blood sample to a bloke who shook it and said that there was not enough blood in the sample in order for it to be tested”, or words to that effect. However [Mr Parker] did not give evidence about this from the witness box, or call the “bloke” concerned. I therefore had no opportunity to cross-examine to determine such things as the “bloke’s” occupation, qualifications, independence from [Mr Parker], or the basis upon which he may have arrived at the conclusion attributed to him by [Mr Parker].
His Honour granted [Mr Parker’s] application, and made an order that the complaint relevant to this matter be laid within 7 days.
In his affidavit, Mr Parker disputed the assertion in the penultimate paragraph as to the nature of what he put to the magistrate.
The Crown appealed against the decision of the magistrate on the grounds that the magistrate erred in making an order pursuant to section 47IAB of the Road Traffic Act without evidence being given by, or on behalf of, Mr Parker.
Mr Parker appeared unrepresented at the hearing of the appeal. He informed the Court that he was content to rely upon the submissions put by counsel for Ms Conway who he felt adequately agitated the relevant issues in respect of his matter.
The Legislative Scheme
Before coming to discuss the merits of the appeal, it is important to discuss the nature of the legislative scheme providing for immediate licence disqualification or suspension.
The Bill to amend the Road Traffic Act and introduce the scheme of immediate licence suspension or disqualification as a penalty for drink-driving offences was introduced into Parliament on 28 October 2004.[4] The Second Reading Speech emphasised that the purpose of the Bill was to reduce the incidence of drink driving with a view to reducing road fatalities:[5]
The Statutes Amendment (Drink Driving) Bill 2004 proposes to put in place a package of tough new measures, consistent with the recommendation of the Road Safety Advisory Council, that will halt the increase in drink driving and in doing so benefit individuals, their families and the community through a decrease in injuries and fatalities associated with motor vehicle crashes in which alcohol is a contributing factor.
The amending Act introduced two measures recommended to Government by the Road Safety Advisory Council: unrestricted mobile random breath testing and immediate licence suspension or disqualification for any person detected driving with a blood alcohol concentration of above 0.08. These appeals concern the second of these measures.
[4] Statutes Amendment (Drink Driving) Act 2005 (SA), assented to 14 April 2005, came into effect 1 June 2006 with exception of sections 47IAA and 47IAB, which came into effect on 1 December 2006.
[5] Parliamentary Debates, House of Assembly, 28 October 2004, 684 (The Hon P L White).
The concerns giving rise to the scheme of immediate licence disqualification or suspension related to the lack of effectiveness of conventional sanctions in reducing drink-driving recidivism. In particular, the lack of expeditious processing through the courts of alleged drink driving offences was said to reduce the effectiveness of the penal process. During the Second Reading Speech, the Minister observed:[6]
Offenders whose drink driving offence was expeditiously processed through the courts have been shown to have lower re-offence rates than those experiencing long delays. Conversely, the deterrent effects in reducing recidivism can be significantly undermined and negated when there is along delay between the detection of the offence and imposition of the sanction.
[6] Parliamentary Debates, House of Assembly, 28 October 2004, 684 (The Hon P L White).
The Minister addressed what might be considered to be the severity of the proposal in the following terms:[7]
Initially this proposal would appear to be severe. However, the decision by a member of SAPOL to immediately suspend a person’s driving licence would not be based upon arbitrary or idiosyncratic criteria but on the basis of a preliminary alcotest and two evidentiary breath analyses conducted not less than two nor more than ten minutes apart, in accordance with procedures and standards set out in the Road Traffic Act 1961. The accuracy of these instruments is already well documented and accepted by the judiciary. In addition, they must now meet very strict international standard provisions.
Furthermore, a person who believes they have a defence to the offence alleged or that they are guilty only of a lesser offence, will have the right to apply to the Magistrates Court to have the suspension lifted or reduced. On hearing the application, the Court would then have the power to order that the suspension or disqualification be lifted until the criminal charge is dealt with or to order that the period of the suspension or disqualification be reduced.
To ensure that a person is not punished twice, it is proposed that any time served during the immediate licence suspension or disqualification period would be deducted from a period of disqualification imposed on conviction for the offence.
It must be emphasised that the proposal does not remove the right of the person to defend the charge in a court of law.
[7] Parliamentary Debates, House of Assembly, 28 October 2004, 684 (The Hon P L White).
Section 47IAA of the Road Traffic Act allows a police officer to impose an immediate licence disqualification or suspension where a member of the police force reasonably believes that a person has committed, inter alia, a “category 3” offence of driving with a concentration of alcohol of over 0.15 grams in 100 millilitres of blood. Section 47IAA relevantly provides:
(1) This section applies to the following offences:
(a) a category 2 offence;[8]
(b) a category 3 offence;[9]
(c) an offence against section 47E(3);[10]
(d) an offence against section 47I(14) committed by a person who was the driver of a motor vehicle involved in the accident.
(2)Subject to this section, if a member of the police force reasonably believes that a person has, after the commencement of this section, committed an offence to which this section applies, the police officer may give the person a notice of immediate licence disqualification or suspension in the prescribed form.
[8] A category 2 offence is defined in section 47A to mean: “an offence against section 47B(1) involving a concentration of alcohol of less than .15 grams, but not less than .08 grams, in 100 millilitres of blood”.
[9] A category 3 offence is defined in section 47A to mean: “an offence against section 47B(1) involving a concentration of alcohol of .15 grams or more in 100 millilitres of blood”.
[10] Section 47E(3) provides:
A person required under this section to submit to an alcotest or breath analysis must not refuse or fail to comply with all reasonable directions of a member of the police force in relation to the requirement and, in particular, must not refuse or fail to exhale into the apparatus by which the alcotest or breath analysis is conducted in accordance with the directions of a member of the police force.
Penalty:
For a first offence—a fine of not less than $700 and not more than $1 200.
For a subsequent offence—a fine of not less than $1 500 and not more than $2 500.
The legislation confers upon a police officer a discretion to give notice to a driver, in the specified circumstances, of an immediate disqualification or suspension of that person’s driver’s licence. This would appear to be an administrative act by the police officer pursuant to powers in section 47IAA. The notice is given without a complaint being laid or proceedings of any sort issued. The trigger to the police officer’s powers is in section 47IAA(2), that is, a reasonable belief that a person has committed an offence to which the section applies.
It is unsurprising that the Minister described the process as severe. A penalty is imposed by an administrative act without a complaint having been laid, without any court process, without any adverse finding and without the right to be heard. It can be readily foreseen that particular hardship could follow from immediate licence disqualification or suspension.
In these circumstances, Parliament saw fit to require the notice of immediate licence disqualification or suspension to specify the offence to which the notice relates. It is to be observed that customary mandatory language has been used in that respect. Section 47IAA(3) provides:
The notice must specify the offence to which the notice relates.
Pursuant to section 47IAB(1)(a), a person who has been given a notice of immediate licence disqualification or suspension may apply to the Magistrates Court for an order that they are not disqualified or that their driver’s licence is not suspended. Section 47IAB of the Road Traffic Act, provides:
(1)A person who has been given a notice of immediate licence disqualification or suspension under section 47IAA or has been sent particulars of such a notice by the Registrar of Motor Vehicles may apply to the Magistrates Court for an order—
(a) that the person is not disqualified, or the person's driver's licence is not suspended, by the notice; or
(b) reducing the period of disqualification or suspension applicable under the notice.
(2)The Magistrates Court may, on an application under subsection (1), make an order—
(a) that the person is not disqualified, or the person's driver's licence is not suspended, by the notice if the Court is satisfied, on the basis of evidence given by or on behalf of the applicant, that there is a reasonable prospect that the applicant would, in proceedings for the offence to which the notice relates, be acquitted of the offence and the evidence before the Court does not suggest that the applicant may be guilty of another offence to which section 47IAA applies; or
(b) reducing the period of disqualification or suspension applicable under the notice if—
(i)the offence to which the notice relates is a category 2 or category 3 offence that is a first offence and the Court is satisfied, on the basis of evidence given by or on behalf of the applicant, that there is a reasonable prospect that the applicant might, in proceedings for the offence to which the notice relates, successfully argue that the offence was trifling (in which case the Court must order that the period of disqualification or suspension be reduced to a period of 1 month); or
(ii)the offence to which the notice relates is a category 3 offence and the Court is satisfied, on the basis of evidence given by or on behalf of the applicant, that there is a reasonable prospect that the applicant would, in proceedings for the offence to which the notice relates, be acquitted of the offence but the evidence before the Court suggests that the applicant may be guilty of a category 2 offence (in which case the Court must order that the period be reduced to a period of 6 months).
(3)The application must be commenced by lodging written application with the Magistrates Court, in the form prescribed by rules of the Court, setting out the grounds on which the application is made and particulars of the evidence that will be relied on by the applicant.
(4) The Commissioner of Police—
(a) must be served, by an applicant for an order under this section, with a copy of the application as soon as practicable after the application is made; and
(b) is a party to the application; and
(c) may (but is not required to) appear at the hearing represented by legal counsel or a member of the police force.
(5)If the Commissioner of Police does not appear at the hearing, the clerk of the Court must notify the Commissioner of Police, in writing, of the date on which the application was determined and the nature and effect of any order made in relation to the application.
The court may, on an application made pursuant to section 47IAB, order that the person is not disqualified or suspended by the notice, “…if the Court is satisfied, on the basis of evidence given by or on behalf of the applicant...” that, inter alia, there is a reasonable prospect that the person would be acquitted of the offence. [11]
[11] Road Traffic Act 1961 (SA), section 47AB(2)(a).
The function of the magistrate under section 47IAB is administrative. The magistrate is not reviewing the reasonableness of the belief of the police officer who issued the notice, as might be the case if there were some form of judicial review. The magistrate is making an administrative decision as to whether the person should be disqualified or suspended in substitution for the administrative decision of the police officer. This is made clear by the wording of section 47IAB(2)(a), which provides that the magistrate need be “satisfied” as to a “reasonable prospect” of the person subject to the notice being acquitted of the offence to which the notice relates. Such terminology is indicative of an administrative decision making process, not of a criminal judicial function.
These legislative amendments build upon a legislative scheme previously recognised as encroaching upon the civil liberties of individuals.[12] Indeed, the provisions take that encroachment a step further. The new provisions further impinge upon the rights of individuals. They permit a penalty, normally viewed as a punishment for a crime, to be imposed without any finding of guilt and in the absence of procedural fairness. Importantly, section 47IAB has the potential to jeopardize an individual’s right to silence; a right derived from the privilege against self-incrimination, which is a fundamental tenet of the Australian legal system.
[12] See Stanton v Police (1996) 66 SASR 263 at 266 where Williams J (with whom Doyle CJ and Duggan J agreed) recognised that “The obligation to submit to an alcotest or a breath test is clearly something which impinges upon the civil liberty of the individual.” Having regard to the civil liberties implications, Williams J saw fit to construe the legislative provision in question in a manner that resulted in the least impact on civil liberties. See also Police v Jelinek (1998) 200 LSJS 441 at 448-449 where Mulligan J recognised that the requirement to submit to a breath test constituted “a significant invasion of civil liberty.”
The privilege against self-incrimination, which includes the right to silence,[13] is deeply ingrained in the common law.[14] In Sorby v The Commonwealth, Gibbs CJ said of that privilege:[15]
If a witness is compelled to answer questions which may show that he has committed a crime with which he may be charged, his answers may place him in real and appreciable danger of conviction, notwithstanding that the answers themselves may not be given in evidence. The traditional objection that exists to allowing the executive to compel a man to convict himself out of his own mouth applies even when the words of the witness may not be used as an admission. It is a cardinal principle of our system of justice that the Crown must prove the guilt of an accused person, and the protection which that principle affords to the liberty of the individual will be weakened if power exists to compel a suspected person to confess his guilt. Moreover the existence of such a power tends to lead to abuse and to “the concomitant moral deterioration in methods of obtaining evidence and the general administration of justice.”
[13] Azzopardi v The Queen (2001) 205 CLR 50 at [34]-[36] (Gaudron, Gummow, Kirby and Hayne JJ); [118] (McHugh J).
[14] Sorby v The Commonwealth (1983) 152 CLR 281 at 309 (Mason, Wilson and Dawson JJ).
[15] Sorby v The Commonwealth (1983) 152 CLR 281 at 294.
Earlier in the course of his reasons, Gibbs CJ made the following observations regarding the circumstances in which the legislature will be taken to have abrogated the privilege against self-incrimination:[16]
Although the legislature may abrogate the privilege, there is a presumption that it does not intend to alter so important a principle of the common law. In Kempley v The King,[17] Starke J went so far as to say that “where authority is given to compel the examination of persons, the ordinary rule of the common law which protects a person from answering questions which tend to criminate him applies unless expressly excluded”. However, he went on to say that “whether the rule is excluded must depend upon the provisions of the legislative act or the nature of the subject”, and this appears to recognize that an intention to exclude the privilege may appear although there are no express words of exclusion. Although there are not wanting other statements to the effect that the privilege will not be taken away without express words … it is not correct to say that if the legislature wishes to render the privilege unavailable it must in every case do so expressly. The character and purpose of the statute may indicate that it should not be construed so as to preserve the privilege. … However, a statute will not be construed as excluding so valuable a privilege unless an intention to do so clearly appears.
[16] Sorby v The Commonwealth (1983) 152 CLR 281 at 289-290 (footnote original).
[17] Kempley v The King [1944] ALR 249 at 253.
In Petty and Maiden,[18] Mason CJ, Toohey and McHugh JJ stated:[19]
A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played. That is a fundamental rule of the common law which, subject to some specific statutory modifications, is applied in the administration of the criminal law in this country.
[18] Petty and Maiden v The Queen (1991) 173 CLR 95.
[19] Petty and Maiden v The Queen (1991) 173 CLR 95 at 99.
In Pyneboard Pty Ltd v Trade Practices Commission,[20] Murphy J spoke of the privilege against self-incrimination as a human right protected by the common law:[21]
The privilege against compulsory self-incrimination is part of the common law of human rights. It is based on the desire to protect personal freedom and human dignity. These social values justify the impediment the privilege presents to judicial or other investigation. It protects the innocent as well as the guilty from the indignity and invasion of privacy which occurs in compulsory self-incrimination; it is society’s acceptance of the inviolability of the human personality. In the widest sense it prohibits compulsory admission of criminality, that is, infamy, even where there is no prospect of punishment, because, for example, of a pardon, of the expiration of the time limited for prosecution. In the narrow sense, it is privilege against exposure to jeopardy of criminal prosecution.
The common law privilege against self-incrimination, described by Mason ACJ, Wilson and Dawson JJ as “too fundamental a bulwark of liberty to be categorized simply as a rule of evidence”[22] is therefore to be regarded as a substantive right, which Parliament will only be interpreted to have abrogated by the use of clear words to that effect.
[20] Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 329.
[21] Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 329 at 346 (Murphy J).
[22] Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 329 at 340.
Another fundamental principle that underpins the organisation of our society is that it is the role of the police, on behalf of the executive arm of government, to detect crime and detain suspects and bring them before the courts. It is then for the courts, a separate arm of government, to administer punishment. By empowering police officers to impose immediate licence disqualifications or suspensions as a form of punishment, Parliament has legislated for a derogation of this fundamental principle.
In such circumstances, where the legislative provisions in question have the potential to significantly erode civil liberties and to encroach upon fundamental tenets of our society, strict compliance with the terms of the provisions is required. Parliament can have only intended to derogate from such fundamental principles as the privilege against self-incrimination and the separation of powers in circumstances where the provisions so providing are strictly adhered to and implemented.
The procedures in the Magistrates Court
Although it is not an issue in these proceedings, it is appropriate to draw attention to procedures adopted in the Magistrates Court in these proceedings.
In the case of Ms Conway, the proceedings were adjourned with a direction that a complaint be laid before the next hearing. In the case of Mr Parker, the magistrate apparently made an order that the complaint be laid within seven days. Those directions would appear to have been influenced by Rule 28 of the Magistrates Court Rules 1992, which relevantly provides:
28.01Where a member of the police force gives a person a notice of immediate licence disqualification under section 471AA(2) of the Road Traffic Act 1961 then the member must cause a complaint to be made as soon as reasonably practicable about the offence to which the notice relates and any associated offences and, subject to this rule, the complaint must be filed with the court within seven days of the notice being given. The complaint must note the fact that a notice of immediate licence disqualification or suspension has been given.
…
28.07Once the Commissioner of Police is served with an application, the complaint, if not already filed with the court, must be filed as soon as reasonably possible and an apprehension report detailing the police case must be available at the hearing of the application.
28.08When hearing an application the court may take any failure to provide a complaint or an apprehension report into account in assessing the merits of the application.
The time within which a complaint may be made is prescribed by section 52 of the Summary Procedure Act 1921 (SA). For these offences a complaint may be made within two years of the date of the offence. There is nothing in the Road Traffic Act that alters that period in the case of an offence against section 47B(1) of that Act or where a police officer has issued a licence disqualification or suspension notice under section 47IAA. Indeed, there is nothing in the legislation that requires a complaint to be made at all. Section 47IAA(9) merely provides:
The period for which a disqualification or suspension has applied to a person under this section as a result of the person having been given a notice of immediate licence disqualification or suspension will be counted as part of any period of disqualification that is imposed on the person in relation to the offence to which the notice relates by order of a court under this Division.
Those provisions of Rule 28 of the Magistrates Court Rules 1992, which purport to require a complaint to be made within a specified time, would appear to be of questionable validity, as would the directions of the magistrates apparently given in these cases.
There is obviously a need to deal with applications under section 47IAB of the Road Traffic Act as soon as practicable. Other parts of Rule 28 provide for deemed service of the application on the Commissioner of Police in order to ensure that the hearing can proceed with the upmost expedition. However, delaying a hearing to enable a complaint to be made can only prejudice an applicant under section 47IAB who is entitled to have the application heard as a matter of urgency.[23] Directing that a complaint be issued would appear to be beyond the power of the Magistrates Court.
[23] The disqualification under s 47IAA is either immediate or, at the most, subject to a 48 hour delay: sections 47IAA(4) and (12).
As appears below, the fact that there is no compulsion on the part of the police to make a complaint at all has some bearing on the proper approach to be taken by magistrates in hearing such applications.
The prescribed notice
During the course of the hearing of the appeal, attention was drawn to the terms of the immediate licence suspension notice issued by police to Ms Conway. Relevantly, the notice provided:
PRESCRIBED CONCENTRATION OF ALCOHOL – Section 47IAA of the Road Traffic Act 1961
At about 10.49 pm on 08/12/2005 at Aldinga Beach (location) it is alleged that you had committed the offence of:
…
blood alcohol concentration of or above 0.15
(Section 47B(2) Road Traffic Act 1961)
As a result of this allegation, your driver’s licence is suspended or you are disqualified from holding or obtaining a driver’s licence for a period of … 12 months …
This notice of suspension or disqualification commences:
…
48 hours after the notice is given to you
…
TIME AND DATE NOTICE GIVEN
This notice was issued and given at 11.09 pm on 08/12/2005
This notice followed the prescribed form of notice pursuant to the regulations.[24] As already observed, a similar notice was issued to Mr Parker, save that the offence alleged in his case was:
Blood alcohol concentration 0.08 – 0.149
(Section 47B(2) Road Traffic Act 1961)
and the relevant date and time of issuing his notice was inserted.
[24] Road Traffic (Miscellaneous) Regulations 1999, regulation 6F, schedule 1AAA.
In particular, relevant to the present proceedings, it is to be observed that the offence is described as, “blood alcohol concentration of or above 0.15” or “blood alcohol concentration 0.08 - 0.149” followed immediately by a reference to “Section 47B(2) Road Traffic Act 1961”.
Section 47B(2) of the Road Traffic Act was repealed by section 18 of the Statutes Amendment (Transport Portfolio) Act 2001 (SA), which came into effect on 27 May 2002. Accordingly, the prescribed notice, and specifically the notices issued to both Ms Conway and Mr Parker, identified a section that was repealed in 2002.
Presumably, all other notices issued by the police pursuant to section 47IAA in relation to category 2 or category 3 offences have followed the prescribed form and have specified an offence pursuant to a repealed provision.
The preliminary issues arose as to whether there was an obligation to identify the offence as a mandatory requirement to there being a valid notice, and secondly whether the notices issued to Ms Conway and Mr Parker adequately satisfied the express requirement of section 47IAA(3) of “specifying” the offence to which the notice related.
The general approach to be taken to the question as to whether a particular requirement of legislation is mandatory or merely directory was discussed by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority.[25] McHugh, Gummow, Kirby and Hayne JJ observed:[26]
An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.
[25] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. See also Bond v WorkCover Corporation of South Australia and Allianz Australia Workers’ Compensation (SA) Ltd [2005] SASC 464.
[26] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-389 [91] per McHugh, Gummow, Kirby and Hayne JJ.
That issue is to be determined by considering whether the legislation evinces an intention that notices of immediate licence disqualification or suspension should be invalid in the event of non-compliance with section 47IAA(3). The question to be asked is:[27]
whether it was a purpose of the legislation that an act done in breach of the provision should be invalid … In determining the question of purpose, regard must be had to “the language of the relevant provision and the scope and object of the whole statute”.
Furthermore, as McHugh, Gummow, Kirby and Hayne JJ said:[28]
Courts have always accepted that it is unlikely that it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of the invalidity of the act.
[27] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [93] per McHugh, Gummow, Kirby and Hayne JJ.
[28] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [97] (McHugh, Gummow, Kirby and Hayne JJ).
It is evident with respect to the present legislation that Parliament treated as critical to the scheme of immediate licence disqualification or suspension that the offence be accurately identified. This is of particular importance given that the legislation provides that, through an administrative act, a person’s licence can be disqualified or suspended for a lengthy period. In these circumstances, the person disqualified or suspended is entitled to know the precise basis of the disqualification or suspension. Furthermore, if that person seeks to review the order of disqualification or suspension before a magistrate, the issue then to be determined is whether there are reasonable grounds made out to defend such a charge. In the event that the police lay a complaint and the person is convicted, then it is important that the offence the subject of the notice and the disqualification or suspension be correctly identified.
It is also relevant that a decision to make an application under section 47IAB of the Act will often need to be made urgently and, as in both of the cases before this Court, without the benefit of legal advice or assistance. A person served with a disqualification or suspension order is entitled to know precisely where to go to find out what defence, if any, that person may have to a charge, details of which have not at that time been reduced to a formal complaint.
While some latitude might be permitted if the relevant offence were otherwise properly identified, even with a mistaken reference to the repealed section, the notices issued in these cases did not effectively do so. The notices made no reference to driving with a blood alcohol concentration of the relevant percentage. Although the heading to the relevant section of the notices referred to section 47IAA, one finds no reference in that section to any prescribed concentration of alcohol. Even a reference in a notice to a category 2 or category 3 offence, as the case may be, would have related the notice to the content of section 47IAA, and would perhaps have caused an inquiry as to just what a category 2 or 3 offence is and where it is defined. It is not for this Court to redraft the notice. It is sufficient to identify that the offence in each case was not adequately specified.
We are satisfied that, with respect to the legislation under examination, strict compliance with the statutory requirement to specify the offence was necessary and that a failure to comply with that requirement would result in invalidity of the notice. The purpose of the requirement in section 47IAA(3) is to provide a person served with notice of immediate disqualification or suspension of their driver’s licence the crucial information regarding the offence that the police officer issuing the notice believes him or her to have committed, particularly in a situation involving a significant invasion of civil liberties and the imposition of punishment by administrative act. In the absence of such information, a person could not meaningfully utilise the provisions of section 47IAB of the Act to seek to review the decision of the police officer. This in turn results in a lack of procedural fairness afforded to the person subject to the licence disqualification or suspension. Accordingly, the notice required by section 47IAA(3) plays a crucial role in the legislative scheme. Its importance is underlined by Parliament’s use of “must”.
It follows that the failure to strictly adhere to the requirement in section 47IAA(3) results in a failure to validly initiate the disqualification or suspension of licence process. In this respect, it was the purpose of the legislation, as a means of providing protection to the person the subject of the disqualification or suspension order, that a failure to strictly comply with the provisions of the Act should render the notice invalid. From this it follows that the actions of the police, in purporting to suspend Ms Conway’s and Mr Parker’s licences by issuing invalid notices, were taken beyond power and in jurisdictional error.
Evidence given by or on behalf of the applicant
Counsel for the appellant submitted that the word “evidence” in section 47IAB ought to be given its natural and ordinary meaning. So defined, counsel contended that “evidence” as contemplated in section 47IAB, should be construed to mean evidence given on oath, either by the applicant or another person, or to documents and other relevant materials proven in the normal way. In short, the appellant contended that the strict rules of evidence applied to the review proceedings before the magistrate.
Counsel pointed to section 9 of the Evidence Act 1929 (SA), which articulates the limited exceptions to the rule, that evidence that is not given on a validly administered oath or affirmation is inadmissible.[29] Counsel contended that the sanction of the oath is so fundamental to the concept of evidence that it should only be taken to be dispensed with by the clearest and most unequivocal statutory language and that such language does not appear in section 47IAB.
[29] Doe v Davis (1847) 10 QB 314 at 323 (Lord Denman CJ); Wendo v R (1963) 109 CLR 599 at 572 (Taylor and Owen JJ); AG’s Reference No 2 of 1987 (1987) 46 SASR 275.
Counsel submitted that the absence of any reference to evidence on oath in section 47IAB simply means that evidence in forms other than oral is also contemplated. Counsel argued that the requirement for evidence on oath and proper proof is likely given the scheme of the Act, the seriousness of the conduct dealt with by the legislation and the consequent likely intention of Parliament that the material put forward by the applicant carry the important sanction of an oath. Against this background, counsel for the appellant contended that it would be erroneous for a magistrate to receive and act on unsworn statements made from the bar table or contained in the written application.
Section 47IAB(4) of the Road Traffic Act provides that the Commissioner of Police is a party to the review process and may appear at the hearing represented by legal counsel or a member of the police force. Counsel for the appellant contended that, by virtue of the Commissioner’s role as a party and by application of the principles of natural justice,[30] the Commissioner enjoys certain rights in relation to the review process. One of those rights, counsel submitted, is the right to challenge the evidence presented by the applicant, which includes the ability to cross-examine the applicant and to otherwise test any evidence presented by the applicant. Counsel contended that such an interpretation was consistent with the purpose and intention of the Act.
[30] In particular, counsel drew the Court’s attention to the observations of Kirby J in Allesch v Maunz (2000) 203 CLR 172 at [35]:
It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice”. It is a rule of natural justice or “procedural fairness”. It will usually be imputed into statutes creating courts and adjudicative tribunals.
Counsel for Ms Conway emphasised that the hearing before the magistrate was in the nature of a review of an administrative decision. Counsel contended that accordingly, “evidence” should be construed within an administrative law, as opposed to a criminal law context.
Brennan J discussed the meaning of “evidence” within an administrative context in Re Pochi:[31]
[31] Re Pochi (1979) 26 ALR 247 at 256-257.
Facts can be fairly found without demanding adherence to the rules of evidence. Diplock LJ in Reg v Deputy Industrial Injuries Commissioner, Ex parte Moore [1965] 1 QB 456 at p488 said:
“These technical rules of evidence, however, form no part of the rules of natural justice. The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue.”
Lord Denning MR in T A Miller Ltd v Minister of Housing and Local Government [1968] 1 WLR 992 at 995 said much the same:
“Tribunals are entitled to act on any material which is logically probative, even though it is not evidence in a court of law.”
And he repeated that observation in Kavanagh v Chief Constable of Devon and Cornwall [1974] 1 QB 624 at p633. In the United States where considerable judicial attention has been given to fact finding by administrative tribunals (see Schwartz Administrative Law, Boston, 1976 paras. 115 et seq), substantially the same principle has been expressed. It was thought, at one time, that the Consolidated Edison judgment required that some legal proof had to be adduced, and that hearsay evidence alone could not support an adverse finding: see Schwartz, op.cit, para 118. But in Richardson v Perales, 402 US 389 at p 407 the Consolidated Edison case was construed in this way:
“The contrast the Chief Justice was drawing … was not with material that would be deemed formally inadmissible in judicial proceedings but with material ‘without a basis in evidence having rational probative force.’ This was not a blanket rejection by the Court of administrative reliance on hearsay irrespective of reliability and probative value. The opposite was the case.”
The majority judgments in Bott’s case show that the Tribunal is entitled to have regard to evidence which is logically probative whether it is legally admissible or not. Starke J said at pp 249,250:
“The Appeal Tribunal can obtain information in any way it thinks best, always giving a fair opportunity to any party interested to meet that information; it is not obliged to obtain such independent medical opinion, for instance, upon oath, and whether cross-examination shall take place upon that opinion is entirely a question for the discretion of the Tribunal; it is not bound by any rules of evidence, and is authorized to act according to substantial justice and the merits of the case.”
Re Pochi was concerned with proceedings before a tribunal that was “not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate”.[32] While the observations of Brennan J must be read in that light, they are nevertheless relevant to what may properly constitute “evidence” in an administrative setting. It is significant that the observations of Diplock LJ in Reg v Deputy Industrial Injuries Commissioner: Ex parte Moore[33] were made in a case where there was no such statutory provision. That case decided that one of the rules of natural justice required to be applied by an administrative tribunal merely required that the decision be based on evidence, namely, information, whatever its source, of some probative value. It did not require sworn evidence. The same may be said of the other authorities cited by Brennan J in Re Pochi.
[32] Re Pochi (1979) 26 ALR 247 at 256.
[33] Reg v Deputy Industrial Injuries Commissioner: Ex parte Moore [1965] 1 QB 456 at 488.
In our opinion, “evidence” in the context of the administrative procedure contemplated by section 47IAB of the Road Traffic Act bears a similar connotation.
It must also be borne in mind that an application under section 47IAB will, in many if not most cases, proceed where no complaint has yet been issued and where possibly no complaint will ever be issued. It would be unusual and contrary to any notion of justice and fairness in the administration of the criminal law that, without some clear mandate, a person should be required to justify their innocence on oath where no admissible evidence has been adduced or may ever be adduced in support of the alleged offence on which the licence disqualification or suspension is based. The parliamentary debates lend support to such an interpretation of “evidence” in section 47IAB(2).
On 8 February 2005, in response to questions and issues that had been raised during the preceding debate on the Bill, the Minister gave the following further explanation regarding the operation of the section 47IAB review process:[34]
The view that the proposal for immediate loss of licence is unfair because it reverses the onus of proof and imposes a penalty of licence disqualification before a person has been found guilty by a court is something that was also discussed in debate last night. … A review process is also weighted in favour of the disqualified driver. The sole purpose of that process is to review the issue of the immediate suspension/disqualification of the licence, and it is not intended that the merits of the prosecution or defence can be tested at that point to the magistrates but an applicant only has to establish that there is a reasonable prospect that they would not be convicted of the alleged offence. Whilst the Commissioner of Police is a party to these proceedings, he can decided whether or not to intervene in those proceedings.
[34] Parliamentary Debates, House of Assembly, 8 February 2005, 1398 (The Hon P L White).
It was argued that elsewhere in the Road Traffic Act reference is made to “evidence given on oath”[35] and that the absence of the words “on oath” in section 47IAB further confirms this construction. That argument has some superficial attraction but loses some of its force when it is realised that in each of the sections concerned the Act is speaking of circumstances in judicial proceedings where a minimum statutory penalty may be mitigated. The sections require evidence to be given on oath in circumstances where otherwise section 6 of the Criminal Law (Sentencing) Act 1988 (SA)[36] would apply.
[35] For example, sections 46(3)(b), 47(3)(b), 47B(3)(b), 47E(6)(b), 47I(14a)(b) of the Road Traffic Act.
[36] Section 6, Criminal Law (Sentencing) Act 1988 provides:
For the purpose of determining sentence, a court –
(a)is not bound by the rules of evidence; and
(b)may inform itself on matters relevant to the determination as it thinks fit.
“Evidence” within the context of section 47IAB, ought to be construed broadly. Given that the magistrate, when conducting a review of a licence disqualification or suspension in accordance with the process provided for in section 47IAB, is performing an administrative rather than a criminal judicial function, there is no requirement that oral evidence must be sworn. On the contrary, in the absence of clear words to the contrary, the legislation ought to be construed as preserving the right, which is most fundamental to the Australian legal system, namely the right against self-incrimination, and particularly by way of cross-examination by a prosecuting authority before a complaint may be made.
Approach of the Magistrates
If it is assumed that the notices issued to the respondents were valid, then it falls to consider whether the magistrates erred in acting upon unsworn statements given from the bar table.
Police v Conway
As previously observed, the magistrate’s role pursuant to section 47IAB was to serve an administrative function, to consider whether there is a reasonable prospect that the applicant would, if tried, be acquitted of the offence. Accordingly, the magistrate, in relation to Ms Conway’s application, was correct to say:
I take the view in an application such as this that ‘evidence’ should be widely interpreted as ‘materials’ of a relevant nature.
In our view, the magistrate made no error in performing this administrative function. The magistrate did not take into account any irrelevant material and he had regard to all relevant material. No error of principle was made. It was open to the magistrate to allow the application.
Police v Parker
As with the matter relating to Ms Conway, in relation to Mr Parker, the magistrate correctly performed his role pursuant to section 47IAB. In considering Mr Parker’s application the magistrate had regard to all relevant material and did not have regard to any irrelevant material. No error of principle occurred. It was open to the magistrate to determine that there was a reasonable prospect that Mr Parker would, given the acknowledged fact that his blood sample was unsuitable for analysis, be acquitted of the offence to which the notice related.
Future cases
As already observed, the word “evidence” within the context of section 47IAB is to be construed broadly. It does not follow from the above findings that submissions from the bar table will necessarily be adequate to satisfy the magistrate that the applicant has made out reasonable prospects of an acquittal and that the application pursuant to section 47IAB should be granted. What evidence is required will depend on the individual circumstances of each matter. An apparently incredulous and or implausible account may require verification on oath before a magistrate would find the onus satisfied.
Conclusion
In our view, in both instances under appeal the magistrates were correct to proceed to determine the section 47IAB applications without requiring either applicant to give sworn evidence. However, in any event, the notices of licence suspension, in the prescribed form, failed to comply with the mandatory legislative requirement that the notice “must specify the offence to which the notice relates”. Accordingly, the notices issued were ineffective to secure valid licence disqualifications or suspensions.
Both appeals are dismissed.
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